DP Commission
Data Protection Act 2018
PART 2
DATA PROTECTION COMMISSION
Establishment day
9. The Minister shall, by order, appoint a day to be the establishment day for the purposes
of this Act.
Establishment of Data Protection Commission
10. (1) On the establishment day there shall stand established a body to be known as An
Coimisiún um Chosaint Sonraí or, in the English language, the Data Protection
Commission (in this Act referred to as the “Commission”).
(2) Schedule 2 shall have effect in relation to the Commission.
Supervisory authority for Data Protection Regulation and Directive
11. The Commission shall be the supervisory authority within the meaning of, and for the
purposes specified in—
(a) the Data Protection Regulation, and
(b) the Directive.
Functions of Commission
12. (1) In addition to the functions assigned to the Commission by virtue of its being the
supervisory authority for the purposes of the Data Protection Regulation and the
Directive, the general functions of the Commission shall include—
(a) any functions assigned to it by or under this Act,
(b) functions transferred to the Commission under section 14, and
(c) such other functions as may be assigned to it from time to time by or under any
other enactment.
(2) The Commission shall monitor the lawfulness of processing of personal data in
accordance with—
(a) Regulation (EU) No 603/2013 of the European Parliament and of the Council of
26 June 20135
on the establishment of ‘Eurodac’ for the comparison of
fingerprints for the effective application of Regulation (EU) No 604/2013
establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protection lodged in
one of the Member States by a third-country national or a stateless person and on
requests for comparison with Eurodac data by Member States’ law enforcement
authorities and Europol for law enforcement purposes, and amending Regulation
(EU) No 1077/2011 establishing a European Agency for the operational
management of large-scale IT systems in the area of freedom, security and justice
(recast), and
(b) Regulation (EU) No 604/2013 of the European Parliament and of the Council of
26 June 20136
establishing the criteria and mechanisms for determining the
Member State responsible for examining an application for international
protection lodged in one of the Member States by a third-country national or a
stateless person (recast).
(3) The Commission shall have all such powers as are necessary or expedient for the
performance of its functions.
(4) The Commission shall disseminate, to such extent and in such manner as it considers
appropriate, information in relation to the functions performed by it.
(5) The Commission shall be independent in the performance of its functions.
(6) Subject to this Act, the Commission shall regulate its own procedures.
Performance of functions of Commission by Commissioner or member of staff
13. (1) Where more than one Commissioner stands appointed under section 15, the functions
of the Commission, other than the functions specified in subsection (3), may be
performed through or by a Commissioner where he or she is authorised in that behalf
by the Commission.
(2) The functions of the Commission, other than the functions specified in subsection (3),
may be performed through or by any member of staff of the Commission where he or
she is authorised in that behalf by the Commission.
(3) The functions referred to in subsections (1) and (2) are the functions of the
Commission under sections 12(6), 21, 28, 37, 78(9) and (10), 124, 129(1) and (4),
130(1), 144 (other than subsection (1)), paragraph 1 of Schedule 2 and its function, as
supervisory authority, under Article 35(4) and (5) of the Data Protection Regulation.
(4) A Commissioner or member of staff of the Commission who performs any of the
functions of the Commission is presumed in any proceedings to have been authorised
to do so on its behalf unless the contrary is shown.
Transfer of functions of Data Protection Commissioner to Commission
14. (1) All functions that, immediately before the establishment day, were vested in the Data
Protection Commissioner are transferred to the Commission.
(2) A reference in any enactment or instrument under an enactment to the Data Protection
Commissioner or to the Office of the Data Protection Commissioner shall, in so far as
it relates to a function transferred by this section, be construed as a reference to the
Commission.
(3) A reference in the Act of 1988 (other than in section 1(3)(c)(iii) in so far as it refers to
to the Commissioner of the Garda Síochána) to the Commissioner shall be construed
as a reference to the Commission.
(4) This section shall come into operation on the establishment day.
Membership of Commission
15. (1) The Commission shall consist of such and so many members (not being more than 3)
as the Government determines.
(2) Each member of the Commission shall be known as a Commissioner for Data
Protection (in this Act referred to as a “Commissioner”).
(3) Subject to subsections (4), (7) and (8) and section 18, a Commissioner shall be
appointed by the Government on the recommendation of the Public Appointments
Service and the appointment shall be for a period of not less than 4 and not more than
5 years from the date of his or her appointment.
(4) If, immediately before the establishment day, there is a person holding office as the
Data Protection Commissioner, he or she shall, on the establishment day, be a
Commissioner for the remainder of the term of office, and upon the same terms and
conditions, for which he or she was appointed as the Data Protection Commissioner.
(5) Subject to subsection (6), the Public Appointments Service shall recommend a person
for appointment as Commissioner following a selection process held by the Service
for that purpose.
(6) The Public Appointments Service shall ensure that a person is recommended under
subsection (5) for appointment only if it is satisfied that the person has the
qualifications, experience and skills necessary to enable the Commission to
effectively perform its functions.
(7) A Commissioner to whom subsection (3) applies and whose term of office expires by
the efflux of time may be reappointed to the Commission by the Government for one
further period of not less than 4 and not more than 5 years without the need for a
further recommendation by the Public Appointments Service.
(8) A Commissioner to whom subsection (4) applies and whose term of office expires by
the efflux of time may be reappointed to the Commission by the Government for one
further period of not less than 4 and not more than 5 years.
(9) A Commissioner shall—
(a) act on a full-time basis subject to such terms and conditions (other than the
payment of remuneration and allowances for expenses) as the Government may
determine,
(b) be paid by the Commission such remuneration and allowances for expenses (if
any) as the Minister may, with the consent of the Minister for Public Expenditure
and Reform, from time to time determine, and
(c) not hold any other office or occupy any other position in respect of which
emoluments are payable or carry on any business.
Appointment of chairperson of Commission
16. (1) The Minister shall, where the Commission consists of more than one Commissioner,
appoint one of the Commissioners to be chairperson and such allowance (if any) may
be paid by the Commission to the chairperson as the Minister may, with the consent of
the Minister for Public Expenditure and Reform, from time to time determine.
(2) The chairperson shall have a casting vote in the case of decisions to be taken by the
Commission in the event of a tied vote.
(3) Where a chairperson stands appointed under subsection (1), and is unavailable to
perform his or her duties due to absence or incapacity, the Minister shall appoint
another existing Commissioner to act as chairperson for the duration of the period of
absence or incapacity.
Resignation, removal, disqualification
of Commissioner, ineligibility to become Commissioner
17. (1) A Commissioner may resign from office by giving notice in writing to the
Government of his or her resignation and the resignation shall take effect from such
date as is specified in the notice which date shall be at least 90 days after the giving of
the notice to the Government.
(2) The Government may remove a Commissioner from office if they are satisfied that
one or more of the grounds referred to in subsection (3) apply to the Commissioner.
(3) The grounds referred to in subsection (2) are that a Commissioner—
(a) has become incapable through ill health or otherwise of effectively performing
the functions of the office, or
(b) has engaged in serious misconduct.
(4) Where the Government propose to remove a Commissioner under subsection (2), they
shall notify the Commissioner concerned in writing of their proposal.
(5) A notification under subsection (4) shall include a statement—
(a) of the reasons for the proposed removal,
(b) that the Commissioner may, within a period of 30 working days from the sending
of the notification or such other period as the Government may, having regard to
the requirements of natural justice, specify in the notice, make representations to
the Government in such form and manner as may be specified by the
Government, as to why the Commissioner should not be removed from office,
and
(c) that where no representations are received within the period referred to in
paragraph (b) the Government will, without further notice to the Commissioner,
proceed with the removal of the Commissioner from office in accordance with
this section.
(6) In considering whether to remove a Commissioner from office under subsection (2),
the Government shall take into account—
(a) any representations made by the Commissioner under subsection (5)(b) within the
period referred to in that subsection, and
(b) any other matter the Government consider relevant for the purpose of their
decision.
(7) Where, having taken into account the matters referred to in subsection (6), the
Government decide the Commissioner should be removed from office in accordance
with this section, they shall notify the Commissioner in writing of their decision and
the reasons for their decision.
(8) Where the Government decide to remove a Commissioner from office in accordance
with this section, they shall prepare a statement of the reason or reasons for such
removal and cause that statement to be laid before each House of the Oireachtas as
soon as practicable after the decision is made.
(9) A Commissioner shall cease to hold office if he or she—
(a) is convicted on indictment of an offence,
(b) is convicted of an offence involving fraud or dishonesty,
(c) has a declaration made against him or her under section 819 of the Act of 2014 or
is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of
that Act, or
(d) is subject to, or is deemed to be subject to, a disqualification order within the
meaning of Chapter 4 of Part 14 of the Act of 2014 whether by virtue of that
Chapter or of any other provision of that Act.
(10) A person shall not be eligible for appointment as a Commissioner if any of
paragraphs (a) to (d) of subsection (9) are applicable in respect of the person.
Acting Commissioner
18. Where only one Commissioner stands appointed under section 15, the Minister may—
(a) for the duration of any period of absence or incapacity of that Commissioner, or
(b) on the resignation, removal from office, disqualification or death of that
Commissioner, or where a person ceases to be such Commissioner in accordance
with paragraph 5 of Schedule 2 and pending the appointment of another
Commissioner under section 15,
authorise a member of staff of the Commission to act as a Commissioner and a reference
in this Act to a Commissioner shall be construed, while such authorisation remains in
place, as including a member of staff so authorised under this section.
Accountability of Commissioner to Oireachtas Committees
19. (1) In this section, “Committee” means a Committee appointed by either House of the
Oireachtas or jointly by both Houses of the Oireachtas (other than a committee
referred to in section 19(1) of the Comptroller and Auditor General (Amendment) Act
1993 or the Committee on Members’ Interests of Dáíl Éireann or the Committee on
Members’ Interests of Seanad Éireann) or a sub-committee of such a Committee.
(2) Subject to subsection (3), a Commissioner shall, at the request in writing of a
Committee, attend before it to give account for the general administration of the
Commission.
(3) The Commissioner shall not be required to give account before a Committee for any
matter which is or has been or may at a future time be the subject of proceedings
before a court or tribunal.
(4) Where the Commissioner is of the opinion that a matter in respect of which he or she
is requested to give an account before a Committee is a matter to which subsection (3)
applies, he or she shall inform the Committee of that opinion and the reasons for the
opinion and, unless the information is conveyed to the Committee at a time when the
Commissioner is before it, the information shall be so conveyed in writing.
(5) Where the Commissioner has informed a Committee of his or her opinion in
accordance with subsection (4) and the Committee does not withdraw the request
referred to in subsection (2) in so far as it relates to a matter the subject of that
opinion—
(a) the Commissioner may, not later than 21 days after being informed by the
Committee of its decision not to do so, apply to the High Court in a summary
manner for determination of the question whether the matter is one to which
subsection (3) applies, or
(b) the Chairperson of the Committee may, on behalf of the Committee, make such
an application,
and the High Court shall determine the matter.
(6) Pending the determination of an application under subsection (5), the Commissioner
shall not attend before the Committee to give account for the matter the subject of the
application.
(7) If the High Court determines that the matter concerned is one to which subsection (3)
applies, the Committee shall withdraw the request referred to in subsection (2), but if
the High Court determines that subsection (3) does not apply, the Commissioner shall
attend before the Committee and give account for the matter.
(8) In this section, a reference to “Commissioner” shall, where more than one
Commissioner has been appointed under section 15, be taken to be a reference to the
chairperson.
Transfer of staff of Data Protection Commissioner to Commission
20. Every civil servant who immediately before the establishment day stands assigned to act
as a member of staff of the Data Protection Commissioner shall, on the establishment
day, become and be a member of staff of the Commission.
Staff of Commission
21. (1) The Commission may, subject to the approval of the Minister given with the consent
of the Minister for Public Expenditure and Reform, appoint such number of persons
to be members of its staff as it may determine.
(2) The Commission shall, subject to the approval of the Minister given with the consent
of the Minister for Public Expenditure and Reform, determine the grades of members
of its staff and the numbers in each grade.
(3) Members of staff of the Commission shall be civil servants.
Superannuation of Commissioners
22. (1) The Minister may, with the consent of the Minister for Public Expenditure and
Reform, make a scheme or schemes for—
(a) the granting of superannuation benefits to or in respect of a Commissioner
ceasing to hold office, or
(b) the making of contributions to a pension scheme approved of by the Minister
with the consent of the Minister for Public Expenditure and Reform which has
been entered into by the Commissioner.
(2) The Minister may, with the consent of the Minister for Public Expenditure and
Reform, make a scheme amending or revoking a scheme under subsection (1),
including a scheme amended under this subsection.
(3) If any dispute arises as to the claim of a Commissioner to, or the amount of, any
superannuation benefit payable in pursuance of a scheme under subsection (1), such
dispute shall be submitted to the Minister who shall refer it to the Minister for Public
Expenditure and Reform for determination by him or her.
(4) A scheme under subsection (1) shall be carried out by the Minister in accordance with
its terms.
(5) No superannuation benefit shall be granted by the Minister to or in respect of any
Commissioner ceasing to hold office otherwise than—
(a) in accordance with a scheme under subsection (1), or
(b) with the consent of the Minister for Public Expenditure and Reform.
(6) A scheme under subsection (1) shall be laid before each House of the Oireachtas as
soon as may be after it is made and, if a resolution annulling the scheme is passed by
either such House within the next 21 days on which that House has sat after the
scheme is laid before it, the scheme shall be annulled accordingly but without
prejudice to the validity of anything previously done under that scheme prior to the
resolution.
(7) In this section, “superannuation benefits” means pensions, gratuities and other
allowances payable on resignation, retirement or death.
Annual accounts
23. (1) The Commission shall keep, in such form as may be approved by the Minister with
the consent of the Minister for Public Expenditure and Reform, all proper and usual
accounts (in subsection (2) referred to as “annual accounts”) of all money received or
expended by it and, in particular, shall keep in such form as aforesaid all such special
accounts as the Minister may, with the consent of the Minister for Public Expenditure
and Reform, from time to time direct.
(2) Annual accounts kept in accordance with this section shall be submitted, not later than
1 April in the year immediately following the financial year to which they relate or on
such earlier date as the Minister may from time to time specify, by the Commission to
the Comptroller and Auditor General for audit and, immediately after the audit, a copy
of the accounts, and of such other special accounts (if any) kept in accordance with
this section as the Minister, after consultation with the Minister for Public
Expenditure and Reform, may direct and a copy of the Comptroller and Auditor
General’s report on the accounts shall be presented to the Minister and the
Commission shall, as soon as may be thereafter, cause copies thereof to be laid before
each House of the Oireachtas.
Annual report
24. (1) The Commission shall, not later than 30 June in each year—
(a) prepare a report on its activities in the immediately preceding year, and
(b) cause copies of the report to be laid before each House of the Oireachtas.
(2) Notwithstanding subsection (1), if but for this subsection, the first report under this
section would relate to a period of less than 6 months, the report shall relate to that
period and to the year immediately following that period and shall be made as soon as
may be, but not later than 6 months after the end of that year.
(3) The Commission may, at any time after subsection (1)(b) has been complied with,
publish its annual report in such form and manner as it considers appropriate.
(4) For the purposes of the law of defamation, a report under subsection (1) shall be
absolutely privileged.
Accountability for accounts of Commission
25. (1) The Commissioner, or where more than one Commissioner has been appointed under
section 15, the chairperson, is the accounting officer in relation to the appropriation
accounts of the Commission for the purpose of the Comptroller and Auditor General
Acts 1866 to 1998.
(2) Section 19(2) of the Comptroller and Auditor General (Amendment) Act 1993 shall,
in so far as it relates to data protection matters, not apply to the Commissioner or
chairperson who is the accounting officer pursuant to subsection (1).
Prohibition on disclosure of confidential information
26. (1) A relevant person shall not disclose confidential information obtained by him or her
while performing functions under this Act or the Data Protection Regulation unless he
or she is required or permitted by law, or duly authorised by the Commission, to do
so.
(2) Subsection (1) shall not operate to prevent the disclosure by a relevant person of
information—
(a) in a report to the Commission or a Commissioner,
(b) to a Minister of the Government, and
(c) to a public authority, whether in the State or otherwise, for the purposes of
facilitating cooperation between the Commission and such authority in the
performance of their respective functions.
(3) Subject to section 149, a person who contravenes subsection (1) commits an offence
and is liable on summary conviction to a class A fine.
(4) In this section—
“confidential information” includes information that is expressed by the Commission
to be confidential either as regards particular information or as regards information of
a particular class or description;
“relevant person” means—
(a) a Commissioner,
(b) a member of staff of the Commission,
(c) an authorised officer,
(d) any other person engaged under a contract for services by the Commission or a
member of the staff of such a person, or
(e) a person who has acted in a capacity referred to in any of paragraphs (a) to (d).
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Civil proceedings for contravention of section 26
27. (1) A person who suffers loss or harm as a result of a contravention of section 26(1) may,
subject to section 149, bring proceedings against the person specified in subsection
(2) seeking relief by way of—
(a) an injunction or declaration, or
(b) damages,
or both.
(2) The person specified for the purposes of subsection (1) is—
(a) where it is alleged that the contravention was committed by a Commissioner,
member of staff of the Commission or an authorised officer and the applicant
under that subsection is seeking an injunction or declaration, the Commissioner,
member of staff or authorised officer concerned,
(b) where it is alleged that the contravention was committed by a Commissioner,
member of staff of the Commission or an authorised officer and the applicant
under that subsection is seeking damages, the Commission, and
(c) where it is alleged that the contravention was committed by a person other than a
Commissioner, member of staff of the Commission or an authorised officer, that
person.
(3) Proceedings under subsection (1), in so far as they seek the relief referred to in
paragraph (b) of that subsection, shall be founded in tort.